Interview. 'Our hope is that the work on justice that I had led will resume, because I am bold enough to think that that method should be adopted in many fields and that its result should not be lost.'

Italy’s No. 2 Democrat says prison reform is possible under this government

The pandemic, the lockdown, the riots in the prisons, the so-called “parole” given to mafia bosses and even the accusations of the anti-mafia guru Nino Di Matteo against Minister Bonafede must have produced a salutary shock inside the M5S. That’s the only thing that explains the fact that the Democratic Party’s number two, Andrea Orlando, is now eyeing the possibility of proposing once again the prison system reform he developed when he was Justice Minister, and which ended up shelved as part of the price the PD had to pay to appease the tough-on-crime populism of the Five Stars.

Mr. Orlando, in the discussion on the post-COVID recovery and the use of the recovery fund, we’re not hearing anything about justice and the serving of sentences. But this is one of the key issues, also in connection with restarting the economy.

I really hope that in the reflection on the post-COVID situation there will also be a place for the “invisible society,” those deprived of their freedom either due to psychiatric problems or a prison sentence. Our hope is that the work on justice that I had led will resume, because I am bold enough to think that that method should be adopted in many fields and that its result should not be lost.

Is this just a wish, or do you see real possibilities?

I think we have the right conditions today to resume the thread of that argument.

What has changed since that reform was sacrificed on the altar of M5S tough-on-crime populism?

In the meantime, I would claim that the work has produced some results: some legislative and regulatory innovation, but above all a change in approach in criminal enforcement. But beyond this meagre consolation prize, the dynamic is as you described: the fear of a populist backlash. Back then, it was not so much on the part of Renzi, but rather of the Gentiloni government. Today, once again, the populist narrative has produced a “black swan” outcome: the ultra-restrictive position taken by the head of the Department of Prison Administration and the lessening of the danger from COVID have produced a paradox. In the end, the most dangerous inmates were let out of prison, while those who could become reintegrated into society were perhaps unable to get alternative sentences at all. This should make one reflect: prison-centrism and the hyper-securitarian notion of serving sentences, inspired by exemplary and symbolic penalties for all, does not guarantee safety and produces these stupid paradoxes. This affair has brought out the need for a personalized manner of serving a sentence, as provided for in the reform, i.e. one that takes into account the objective and subjective conditions of the inmate.

But on the grounds of “guaranteeism” [the Italian movement for protecting individual rights in a judicial context], shouldn’t you be able to find more allies in Forza Italia than in the M5S?

Frankly, I don’t think so: in the passage between the two legislatures [of the Renzi and Gentiloni governments], in the preliminary commissions, the FI could have given its consent to get the reform decree passed, but instead they worked together with the Lega to block it. These issues give the measure of how authentic their “guaranteeism” is: at the national level, it is mostly linked to the census, and therefore has little interest in prisons. This doesn’t mean that we shouldn’t try again, hoping for different positions to be taken, both by one party and the other. I believe that there is a sensitivity to these issues in the M5S, which has not prevailed so far. We need to reopen the debate: not on the certainty of punishment for crimes, but on the effects it produces, on its usefulness. So that punishment is not reduced to a social exorcism.

About the “black swan” arising from populism: what do you think of the judges of the Surveillance Courts who “paroled” the inmates considered most at risk of losing their life during Phase 1 of the epidemic, before the stop imposed by the Bonafede Decree?

I interpret this story as showing the inability to manage the prison administration. During the epidemic, the Surveillance Court magistrates played a substitute role. They should be thanked, because the ones responsible are not the particular judges who released the mafia bosses, but rather those who were unable to create the conditions to avoid this happening. The real problem is prison overcrowding. If it hadn’t been for COVID, we would once again be in a position where the Strasbourg Court would have ruled against us. Instead, the Bonafede Decree merely called on the judges to reconsider their measures in the light of the measures taken in the meantime. It does not alter the balance of power between the branches of the state. The question is why these measures were not taken earlier.

However, overcrowding has remained an issue. Will we see a prison building plan financed by the recovery fund popping up now?

I sincerely hope not. The issue today is to make the existing cells fully available, to provide places where those who do not have a permanent home can be put into house arrest, and to imagine other places of lighter detention, which don’t currently exist but are necessary in a graduated system of serving a sentence.

Many, and not just the Italian Radicals, now believe that amnesty and pardon are the only way to get out of this situation and start again on the principle of respect for human rights. If this isn’t appropriate in an emergency like this one, when would it be?

I am against this, because I believe that such measures weaken the demand for comprehensive reform. There has never been reform after a leniency measure. Now, the reform exists and provides for the establishment of intelligent “pressure valves” for the system. The opportunity should not be wasted.

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